When all citizens are freed from the shackles of prejudice and oppression based on their gender, gender expression, sexuality, religion (or lack thereof), caste, ability, age, ethnicity, region of origin, and language, then we will truly have reason to celebrate independence.

The Supreme Court judgment delivered by Justice KS Radhakrishnan Panicker and Justice AK Sikri on April 15,2014 was widely celebrated as a landmark judgment that upheld the right of trans people to self identify our gender as male, female or third gender irrespective of gender affirming surgeries or hormonal therapy. This right to self identify gender without medical interventions or certification is not unique and has international precedent in New York, Malta, Colombia, Argentina, Denmark, Italy, Ireland and Ecuador. The judgment was to be implemented in six months. As is typical in the world’s largest democracy the implementation never happened due to various departments and ministries of an apathetic government playing a lethargic game of ping pong with the judgment.

In December 2014, Tiruchi Siva, a Dravida Munnetra Kazhagam Rajya Sabha MP, introduced the Rights of Transgender Persons Bill, 2014 as a Private Member’s Bill. Though it was passed unanimously in the Rajya Sabha, it disappeared into a Bermuda triangle situated someplace in the Lok Sabha. In December 2015, the Ministry of Social Justice and Empowerment put up a draft of The Rights of Transgender Persons Bill, 2015 and sought comments from the public to be sent by January 2016. Many trans led groups sent recommendations to this draft, none of which was taken into account by the Ministry when they drafted the more draconian The Transgender Persons (Protection of Rights) Bill 2016, introduced in the Lok Sabha on August 2, 2016. Again, trans led groups and legal advocacy groups sent recommendations and some groups deposed before the Parliamentary Standing Committee in a bid to educate them.

On July 21st, 2017, The Standing Committee on Social Justice and Empowerment chaired by the BJP Member of Lok Sabha, Ramesh Bais, and composed of 17 Lok Sabha Members and 10 Rajya Sabha Members, presented its 43rd report on the TG Bill 2016.

The 43rd report on the Transgender Persons (Protection of Rights) Bill, 2016

My first reaction on reading the report was gagging, followed by laughter, frustration and sadness – in that order. Then, I kicked myself for holding onto a shred of belief that the Brahmanical state ever intended to extend any rights to trans or intersex people. Inspite of all our efforts to educate the Standing Committee, the report relies heavily on the imagination of trans people as Hindu mythical creatures like Ardhanareeswara. The report begins with “Eunuchs are ubiquitous in India, standing out in crowds throughout the length and breadth of the country. Their fortunes are determined to a large extent by their looks. Intersexual people are not visibly distinguishable in the West. In marked contrast, eunuchs in the Indian subcontinent are found to dress and behave differently, in addition to living apart in bands and groups. India and other South Asian countries are the only places where the tradition of eunuchs is prevalent today.”

The committee believes that trans/intersex people [it is unclear who they are referring to when they use the derogatory term “eunuch”] are peculiar to the South Asian context. It’s amazing that they have missed out on the transgender tipping point in the West in-spite of the power of globalised American news! Clearly, the committee is also ignorant of the fact that in January 2016, the Karnataka government submitted to a high court Division Bench comprising acting Chief Justice Subhro Kamal Mukherjee and Justice Ravi Malimath that it will remove the word ‘eunuch’ from Section 36 A of the Karnataka Police Act. This follows a PIL that was filed by the Karnataka Sexual Minorities Forum which sought to declare Section 36A of the Karnataka Police Act as unconstitutional.

It is ironic that while using the derogatory term “eunuch”, the committee points out that the term “hijra” [used commonly as a term of self identity among many trans women] carries with it “an obvious sense of denigration”.

The report goes on to say “Eunuchs lived fairly secure lives working as domestic ‘girls’ in the homes of wealthy people and by performing during numerous ritual ceremonies. This role of eunuchs ended with the advent of the British rule and abolition of many kingdoms. Eunuchs were left with no means of supporting themselves. Hence, they exist in this pitiable condition in the Indian subcontinent“. Such conclusions lacking any sociological or historical basis wouldn’t pass muster even in the term paper of an undergraduate student in any of the universities in India. But clearly, the Ministry believes that the golden period of trans/intersex people in the subcontinent was destroyed by the British, instead of our collective disempowerment being the result of various factors like caste, patriarchy, state apathy, transphobia, lack of awareness,public prejudices etc in addition to the criminalising laws of the colonial empire and the nation state. In a couple of days, the Indian Brahmanical state will celebrate 71 years of independence, but still not take responsibility for the condition of its own citizens.

A summary account of the Ministry’s ignorant farce

Definition of transgender persons

The ministry has pinned down the definition of transgender persons as –

The portion of the draft bill which included a definition of “those whose sense of gender does not match with the gender assigned to that person at the time of birth and include trans-men and trans-women, persons with intersex variations and gender-queers” has been struck down by the Ministry. They cite the reason that any person could claim that their gender doesn’t match that which is assigned to them and the screening committee would have no way to judge or certify.

They claim that widening the scope of the definition would open it up to misuse! Why any person would fake being a trans person given that there are no real welfare schemes being proposed and given the many social disabilities that come with such an identity is indeed baffling.

Process of issuing gender identity certificates

A trans or intersex person would have to apply to the District Magistrate, who, on the recommendation of a district screening committee following a physical examination [constituted by the Chief Medical Officer,District Social Welfare Officer with 5 years experience working with trans communities/renowned person in the field of transgender welfare in that district, a Psychologist or Psychiatrist, a representative of transgender community and an officer of the appropriate Government to be nominated by that Government] will be certified only as transgender. On the basis of this certification, it is proposed that all the identity cards like voter id, adhaar card etc will be changed, effectively making us all carry the burden of being trans everywhere, all the time. Needless to say, this denies the right of trans people who identify within the binary our basic constitutional right to equality and liberty, a right that is upheld by the NALSA judgment.

The committee in the report, points out that a physical screening process is demeaning and in violation of the Supreme Court judgment and the constitution, but then, quickly backtracks and agrees with the ministry when the latter insists on this humiliating procedure as being necessary to prevent misuse.

“In case the person requires a re-issue of the certificate after gender affirming surgeries, on production of certificate from a competent Medical Officer regarding their SRS, the District Magistrate shall, suo-motu, issue them the revised certificate regarding their being either a trans-man or trans-woman.” On the second revision of the certificate, post surgery, the committee recommends that a physical examination need not be done again. The committee says transgender persons “no doubt, are reluctant to undergo physical examination in front of the District Screening Committee for obtaining a certificate of a transgender person in the first instance. The Committee wonder why will then the same person would apply again for a certificate and undergo the same procedure which he went earlier.” It is clear that the committee understands that physical examination is a gross violation of our bodily autonomy and that we would be “reluctant” to say the least. But still, like a school child who has no option but to agree with the authoritarian teacher, they continue to nod farcically and agree with all the regressive methods proposed by the ministry. Who would moreover, voluntarily go through this process a second time to change a certificate which is issued as “transgender only” to “trans man/ trans woman”? What practical sense does that make?

Conflation of trans and intersex categories

The recommendation of the committee to rename the bill “The Transgender and Intersex Persons (Protection of Rights) Bill, 2016 was shot down by the Ministry which believes that “Transgender is an umbrella term which includes intersex persons also. Re-wording the title of the Bill would not serve any purpose“. The committee is quickly convinced by this view and agrees with the Ministry in the report. This, inspite of hearing a brilliant, in person deposition by Sampoorna working group team, intersex activist Chinju Ashwathi in which he patiently answered intrusive and inappropriate questions from the Parliamentary standing committee in December 2016. This, inspite of multiple attempts both in person and in writing to educate the standing committee on the differences and overlaps between trans and intersex categories.

Definition of discrimination and grievance redressal

Though the standing committee has recommended that a definition of discrimination be included and its scope be expanded to include acts by public and private institutions and for a proper redressal mechanism to be put in place, the Ministry has cited the toothless, advisory body of the proposed National Council of Transgender Persons as the grievance redressal authority. To add insult to injury, it says “the mechanism of Indian Judicial system is robust for taking care of any violations of the Act either by a person or an Establishment.” There is a glaring absence of any laws to protect trans communities and justice under the current brahmanical judiciary is inaccessible for oppressed sections like dalits, adivasis, lowered caste/class muslims, Kashmiris fighting for self determination and trans people across caste. Given this scenario, the ministry is surely inhabiting a parallel universe to call the judicial system a “robust” one.

Discrimination in employment

The bill says that no transgender person should be discriminated in any matter relating to employment, and provides for the setting up of a Complaint Officer in every establishment (with 100 or more persons). There was no response from the ministry on what the powers of the complaint officer would be or for bringing the private sector and unorganised sector under the purview of the bill. When asked why organisations under 100 member strength could not be brought under this provision, the Ministry opined that “It is not practically feasible for small establishments to designate a Complaint Officer. However, the mechanism of police system is robust in India for taking care of such grievances“.

The ministry thus callously brushes aside recommendations that have been feasible on paper for The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. So clearly, the issue is lack of will and not feasibility. The mechanism of the police system in India is “robust” in only murdering trans women like Tara and criminalising and raping trans women. It seems like a cruel joke to call those very perpetrators our protectors.

Retention of transgender/gender non conforming children with immediate family

The bill states that transgender children be allowed to stay only with natal families and that if the immediate family is unable to care for the child, on the order of a competent court, the child should be placed in a rehabilitation centre. The committee recommended that hijra families of adoption should be recognised as a lot of young trans people leave natal families due to violence and have only hijra families for support. The ministry however struck down the recommendation by claiming that “parallel systems” cannot be allowed to exist and that if this is allowed the bill will have no meaning for the transgender community! The ministry also further said ,”as long as Transgender Person is a child, he/she should not have a choice to reside other than the household where parent or immediate family reside as it would increase the chances of his physical and sexual abuse”. It would be naive to believe that the ministry is not aware that the most sexual abuse across genders are instances of incest within natal families. To claim that there would be increased chances of physical and sexual abuse in a matrilineal hijra system than in natal families is an improbable and ignorant hypothesis. Of course, there may be hierarchies and instances of violence within hijra families like any other, but to de-legitimise as “parallel systems” our families of choice that exist as sole survival, support systems when traditional ones have failed us miserably is brutal.

Livelihood schemes and employment opportunities

When the Committee asked for specific schemes and programmes in the Bill which are being provided by the Government to support livelihood of the transgender persons, the Ministry replied that “it is not possible to put everything in the Bill as the same is derivative in nature”.

Education, social security and health of transgender persons

The committee recommended a definition of inclusive education, acts that discriminate trans students in educational institutions, an obligation on the part of private educational institutions akin to Right to Education Act, 2009, educational programmes on trans issues, employment schemes, career counselling, review of medical curriculum and health insurance coverage among other things. However, there was a deafening silence from the Ministry to all these points.

Criminalisation of begging

The bill states – “Whoever, compels or entices a transgender person to indulge in the act of begging or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.” The ministry voiced its concern that though “well intentioned”, this might be used to harass and criminalise trans people who beg of their own volition or due to lack of employment opportunities. The ministry however responded in an off handed manner that skill training will be given once the Bill is passed.

Reservations under economically and socially backward category in employment and education.

The committee has mentioned this under the miscellaneous section at the end of the report inspite of it being clearly stated in the Supreme Court judgment that trans people should be considered socially and economically backward and must receive affirmative action. Several trans led groups had also asked for a caste based reservation within the proposed trans reservation to ensure the more marginalised among us are not further sidelined. But there was no comment from the Ministry for this point among many others like penal action against abortions of intersex foetuses and forced surgical assignment of sex of intersex infants, marriage, adoption, partnership rights etc.

Proportionality in punishment for crimes

The bill provides for a punishment of only imprisonment for a term which shall not be less than six months but which may extend to two years and with fine for whoever denies trans persons public passage or access to public places, forces a transgender person to leave a house-hold, village or other place of residence or harms/injures/endangers the life, safety, health, or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. In a broad sweep, the bill mentions a range of crimes,makes no mention of relief amounts or whether the crimes are bailable/non bailable. In comparison, The Criminal Law (Amendment) Act, 2013 details a wide range crimes against cisgender women and greater punishments. But this law will not protect even the trans people who identify as women if they are all certified as proposed by the committee as “only transgender”. Two days back, there were reports of a court letting off all four accused of gang raping a 19 year old trans girl in Wadgaon Budruk, Pune citing that neither sec 377 [under which the case against the accused was filed] which criminalises “carnal intercourse against the order of nature with any man, woman or animal” nor IPC 376 which is the anti rape law which mentions women as the victims/survivors is applicable to a victim/survivor who is trans identified.

I first met Jessy in January 2017, at a queer film festival in Egmore. She was introduced to me by a friend. It was around 9:30 pm by the time I left the venue after the screening. I began looking for a bus to get home to Tambaram, but wasn’t able to find one. Jessy, who had booked a call taxi, kindly offered me a ride back, as it turned out her home was in the same locality.

On the way, Jessy and I got to talking about our respective genders and sexualities. I came out to her as gay, and spoke to her about my life and loves. She even counseled me about relationships, asking me to be cautious while choosing guys, and not to get married if I wasn’t interested in women. We exchanged numbers. During the ride, I kept addressing her as Akka. She, however, asked me to call her Amma. I obliged, but felt a little awkward about it, then.

We continued to stay in touch via phone calls and text messages after that meeting. After one particularly intense conversation, she said “I truly feel like you are my son… maybe we were mother and son in our previous births.

Over time, I grew more comfortable with calling her Amma. In February, about a month after we first met, she invited me to the home she shared with other trans women (thirunangais), and introduced me to her guru and trans sisters.

One day, as I was showing her my photos of my art work that I had on my phone, she asked me if I would make a sketch of her from one of her favorite photographs. I was happy to do so. She has framed the drawing and kept it with her.

I have encountered many gay guys who harbor fear and disdain for thirunangais. They try to discourage me from meeting Jessy, cautioning me that others will misinterpret my association with her and other thirunangais.

]]>Reading and viewing are essential because we know that surface notations are the cheat. It is the surface depiction of things what locks us out of the teeming, throbbing, libidinous and emotional world that we inhabit […] Literature and cinema provide a language for all the bouts of effect, anger and desire that punctuate life and escape our observation most of the times. They remind us of what a spectacle our real world is, both inside and outside.

Sahil Sood’s A Thousand Dreams Within Me Softly Burn prompts readers to ponder upon the reason for reading literature and watching films. Some works of art reflect a particular philosophy of life, which create their own reality, and reflect an intermix of emotions and desires that inhabit one’s world. Their underlying urge is to share the diverse gene pool of human experience.

The book unravels the delightful, yet thorny relationship between Saaransh and Akshay. These two young men in Chandigarh have a romantic rendezvous one late evening and begin their journey together. What is it that keeps these two men together? Whether it is love, care, lust, grief, hatred, belonging or remembrance—all these notions stem from the intrinsic need to connect with the other, perhaps with the hope of merging one’s very self into the other. Yet, despite the desire to be together, the journey of love is not that easy. Byron’s quote, “Love will find a way through paths where wolves fear to prey,” evoked in the book, reflects the strength of love and the myriad ways that love continues to drive the characters within this book.

In the book there are two narratives that unfold, along with a central essay based on the voyage through literature and cinema that evokes the voices of several writers that stir our appreciation for art. For a reader who might be uninitiated to the Thumri form of Hindustani Classical Music, or has not listened to ‘Jise Tu Qubool Kar Le’ in Devdas (1955) or Nina Simone’s ‘I Loves You Porgy,’ playing these online renditions may offer a singular experience while reading the book. The non-linear narrative adds an interesting style to the plot, making the reader peel different layers of an onion blub, seemingly muddling things up, yet seamlessly connecting each layer at its stem.

Along with the queer theme, Sahil Sood also queers the text’s structure and narrative technique, through its pictures, lyrics, letters, and essays. The suspense of a detective novel — of the mysterious ‘Dearest’ and ‘Me’ in the letters — is kept until the end. Seemingly post-structuralist in form, the text — where eight letters, sandwiched between seven chapters of Siddharth’s manuscript — might offer different readings to different readers. The personal letters included are actually poetic. Furthermore, they build on where you are in the story and give more insight into the mind of the protagonist.

Another beautiful aspect of A Thousand Dreams Within Me Softly Burn is its ability to capture the vulnerability and transcendence of the human condition. Whether it’s about Jacky, the evil dog that had a growing large patch of decaying skin, or Ami Azan, the impious lady who spent years of her life in disgrace confined to a solitary apartment, the book strikes a chord of the inner melody, waiting to find itself.

Then one day Ami Azan stepped out at dawn. She heard a mystifying aural symphony in the air. She took out her prayer mat and started walking barefoot towards the masjid. Her hair streamed behind her as she walked leaning on a jagged wooden stick. The pewter sky smiled at her. The sound of Imam offering prayers beckoned to her. Naive birds awakened by the first light of dawn flapped their silver wings furiously. She spread her mat on the pristine floor, wrapped the hijab around her head, and with hands joined in worship started murmuring fervent prayers to Allah. Her fears metamorphosed into tears of gratitude. She held her breasts in delight. She looked at the sky and blinked with wonder. A new feeling was thus born in the history of time.

Fiction on gay relationships in contemporary Indian writing is hard to find. It’s a subject we are uncomfortable writing about, precisely because we have mixed feelings about it. When we do chance upon such books, we are either skeptical or regard them as exceptions. This heart-moving book deals with the subject in a frank, sympathetic, and intimate style, and is likely to win over many unwilling mindsets. Sahil Sood has paved the way for a fresh outlook on the nature of gay relationships in the queer genre, which, for most, is synonymous with mushiness, longing, death and loss.

DISCLAIMER 1: This article presents general musings on the law. This is not meant to be a legal white paper or reference guide, but more as a resource for awareness of the options available to the community. For specific legal guidance, please consult a lawyer.

DISCLAIMER 2: Legality, morality and social acceptance are different aspects. Just because something is not illegal, it does not mean that the society around you will accept or tolerate certain acts or situations. Please exercise caution and use your own discretion and judgement to gauge your safety within the socio-cultural environment of your locality/community.

There have been a few recent incidents that have highlighted the confusion among the general public, and among members of the queer community about the legality and illegality of certain situations. In April 2017 there were reports of a police sub-inspector in Punjab getting married to her partner. In July 2017 there was an incorrect report of a marriage between two women in Bangalore. Are such marriages illegal? Can you be arrested for using gay dating apps? What rights does one have if they are being harassed by cops, family members or exploiters because of their gender identity or sexual orientation? Does the queer community even have any protections in the law?

The laws pertaining to queer India, like Section 377, are filled with ambiguities. While the laws themselves may not be used to convict or persecute, the mere presence of them causes fear and anxiety in the queer community, which fuels power to real criminals like extortioners, harassers, rapists, abusers etc. The law has been used to oppress the community, sometimes even by the police themselves or by the own families of queer individuals. In this murky climate, the knowledge of the law is a more powerful safeguard than the very laws which are meant to protect us (in some cases indict us).

Before we get into specifics of our situations, let us understand a principle; “Not being legal does not equate to being illegal”. When something is illegal, it means that there is a provision in the law that specifically prohibits it and makes it a crime. For something to be legally validated, there should be a provision in the law which allows it or regulates it (for example selling a property is regulated by Transfer of Property Act). Now, there is an in-between scenario where there something is not illegal, while – at the same time – there is no law that governs it or regulates it, and it is not a crime. One example is the use (buying/selling/trading) of the bitcoin currency. It would not be illegal unless there is a law that specifically prohibits it, at the same time there is no legal law/authority to regulate the trading of it – which makes it legal but unregulated.

Let’s look at the legal situation for queer Indians in four brackets – Allowable Activities (not illegal – ideally cannot be convicted for), Activities not allowed (because of not having legal provisions), Illegal/Criminal activities (activities you can be convicted for under the current laws), and Legal protections available to individuals.

I. Allowable Activities in the current legal context

Ideally, you cannot be arrested/convicted for any of the following:
I.A. Gender Identity, Gender Expression and Sexual Orientation

– Being open about your gender identity and/or sexual orientation: There is no law today that criminalizes one’s identity of being Gay, Lesbian, Bisexual, Transgender, Queer, Intersex etc. Revealing that someone is a gay man only means that he is (mostly/exclusively) interested in other men: it does not necessarily equate to an admission of the sexual act with a man (which will anyway require evidence to incriminate – Read Section III for more). There are hundreds in India who have come out loudly and openly in print, visual, social media. Bottom-line, one cannot be arrested for coming out and being open about their identity.

– Expressing oneself in any gender or attire (gender-affirmative dressing, cross-dressing etc): “All persons, not just adults, have the right to dress in the attire they choose. This is a fundamental right as per Art. 19(1)(a) and affirmed by the Supreme Court Judgement in NALSA Vs. Union of India, (2014) 5 SCC 438.” (Shukla, pers. comm.)

Para 62 hereunder states: “Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution.”

Caution: Though this is not illegal, expressing oneself by dressing or other mannerisms in a way that may not be perceived as acceptable by mainstream society, may provoke violence, especially against visibly gender non-conforming or non-binary individuals.

– Legally affirming gender in official identity and documentation: Applying for Gender/Name Change (better put as affirmation) in Government Documents (e.g., Passport, Election Card, Educational Certificates is a matter of fundamental right under the Supreme Court Judgement in NALSA Vs. Union of India, (2014) 5 SCC 438.

I.B. Right to Personal Freedom

– Watching/reading gay porn in private, storing gay porn on your laptop is not illegal (except child porn), publishing porn is illegal. Watching/reading anything pornographic in private, possessing pornographic literature are not offenses under the law, as long as it doesn’t involve pedophilic porn (child porn). However, acts of publishing and transmitting any sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees. [Section 67A, Information Tech, Act, 2000]. Section 67B criminalizes browsing, downloading, creation, and publishing child pornography. Child anime porn is also explicitly criminalized.

– Using dating apps: There is simply no law to regulate dating/hookup apps allowing their users to find matches for same-sex sexual intercourse/socialization. Hence, their usage is not illegal per se. However, with malicious intent, these acts might inadvertently make gullible users susceptible under section 377, IPC (See Section III).

– Meeting people and going for casual dates: Meeting people/going on a casual date/blind date is completely legal as there is no law that bars such an act. Also, meeting people is an act guaranteed as Right to Freedom of Assembly under Article 19(1)(b), which is a fundamental right under the constitution.

– Holding hands or hugging in public is not illegal though it might provoke violence or harassment from cops or others. Holding hands and hugging could be considered a guaranteed fundamental right as Right to Freedom of Expression under Article 19(1)(a) of the Constitution. However, kissing in public could be considered an offense under Section 294, IPC as an obscene act. However, it is often found that prosecution of such offenses fail as it is very difficult to establish “annoyance to public” which is the most important ingredient for this offense to have been committed. [references could be made to the judgment of the Delhi HC in A and B vs. State of NCT of Delhi, (25.05.2009 – DELHC) MANU/DE/0768/2009].

I.C. Partners, Relationships and Romantic Freedom

– Living together with your partner(s) of any gender as long as they are adults: Adults (persons more than 18 years of age) living consensually together in private premises is not an offense. See Arasu and Thangarajah (2012) for a discussion of how kidnapping charges are often levied by parents against the same-gender partners of their queer daughters: in cases like these, demonstrating that the individuals are adults and living together consensually is critical.
– Renting an apartment together and having a rental agreementFor rent agreements, there is no prescribed legal format which mandates the tenant(s) to disclose their relationship.
– Conducting a same-gender marriage ceremony/reception –Exchanging rings or solemnizing marriage through vows/rituals, with or without the presence of a priest, between persons of the same-sex is not a criminal offence. It is just that the law may not recognize such marriages as legal marriages, but that doesn’t make them illegal either.

In fact, Ruth Vanita has also argued a point that same-gender marriages could be legal (Vanita, 2005, in Shukla pers. comm.) “The Hindu Marriage Act allows for a marriage to be solemnized as per customary rites (S.7)”, says Shukla. This means that if as per the customs of one of the parties, same sex couples were wedded, it could be argued that such marriages are legal. In reality, there is no judgment wherein, any court has ever validated any such custom on such a matter or otherwise. See Narrain and Ohdedar (2011) for a legal perspective on same-sex marriage in India.

Whatever be the deal, conducting a ceremony is not illegal – just as throwing a birthday party or house-warming party isn’t.
– Sharing pictures of you and your partner/your marriage ceremony:Sharing pictures of you and your loved ones (friends or partners) online/offline is not an offense. Do be cautious that sharing pictures publicly might prompt haters to gather evidence to indict you under Section 377 (Refer Section III).

– Buying a property as co-owners – subject to rules of apartment / society: Buying a property as co-owners is legally possible. Accessing joint home loans is also possible, but in most cases the Banks discourage such practices. However, there are no explicit law that disables any person(s) to apply or avail home loan jointly. There are ways to get around this law.

– inheritance as part of a will (preferably a registered will): “There is no bar on willing away one’s self acquired property to anyone. The person need not be related to the maker of the will. After all, people do will their property to charities/causes etc.” (Shukla, pers. comm). However, do note that if, the legal-heirs of the deceased (testator) may always go to court claiming the invalidity of such a will – and then the issue gets complicated.

I.D. Freedom to participate in and organize queer events

– Participating in pride parades, queer film festivals or gay/queer parties: Participating in Pride Parades, Queer film Festivals, cultural events or parties is a matter of a fundamental right guaranteed by the constitution as a Right to Freedom of Expression and peaceful assembly under Article 19(1). The onus is on organizers to take the requisite permissions for conducting the event,

– Organizing a queer pride parade – Organizing a pride parade is legal (similar to holding a rally/march). Permissions need to be sought from local municipal body, civil and traffic police, on the specified route approved by them. This has religiously been followed by pride organizers across India. The police though has very vague/broad powers to not allow or stop an ongoing programme under Section 144 of Criminal Procedure Code, 1973 and under the respective State Police Acts.

– Organizing a queer film festival – It is just as legal as organizing any other national or international film festival. There are specific rules that apply for public screenings and private screenings of films. Please reach out to organizers of popular queer film festivals for more details.

– Organizing gay/queer parties – Queer parties are as legal as any other parties. Like organizing a party at any other party venue, permissions should be taken, and the local municipal laws must be abided by. Local municipal laws may restrict localities, timings, alcohol service, noise decibel levels, number of persons etc. Needless to say, it is illegal to possess or distribute illegal drugs during any such parties.

I.E. Other acts

– Money in exchange of sexual services: The law is vague on sex work itself, and tends to conflate sex work with trafficking. In India, sex work (the exchange of sexual services for money) is legal, but a number of related activities, including running a brothel, living on earnings of sex work, procuring, inducing an individual or detaining them for prostitution, with or without consent, sex work in areas notified by police and near public places and soliciting are crimes, as per the Immoral Traffic Prevention Act [1986 amendment of the original 1956 Act]. The 1986 Amendment also made the Act gender-neutral, replacing “girls” and “women” by “persons”, thereby bringing cis-men and trans persons within the ambit of the Act.

It is not clear if online solicitation though dating apps or websites is illegal or not.The clients can be punished for sexual activity at or close to a public place (or notified area).

II. What is not possible in the current legal context

– Same-gender partners legally being recognized as married spouses: Same-gender partners are not recognized as legal spouses in the absence of a law allowing same-gender marriage or union. The rights available to married different gender (“heterosexual”) couples are not available. Since there is no marriage or legal civil union, there is no question of divorce.

– Being recognized as spouses for life insurance (possible but tricky): There appears to be no restriction on nominating anyone one desires as a nominee under an insurance policy as per the Insurance Amendment Act (Shukla pers. comm). However, nominating unrelated parties (since the partner is legally unrelated), that is, those who do not have an insurable interest in the life of the insured increases the risk for the insurer. Therefore, insurance companies usually avoid registration of unrelated parties as nominees, and it is almost impossible to negotiate such a deal with them.

– Being recognized as spouses/family for medical insurance: Same-gender partners are typically not covered under a family medical plan. However, some progressive companies in India have managed to provide this under their corporate group insurance policy. See this video from the Diversity Dialogues series for some options.

– Being able to sign as next-of-kin in a medical emergency: Same-gender partners cannot take legal decisions with respect to the medical condition of their partners, or sign the dependent forms in hospitals.

– Being considered as a legal-heir (in the absence of a will): if a person dies before making a will, then as per the laws on succession, the property of the deceased by default is succeeded by the legal-heirs of such deceased, i.e., persons who are related by birth or marriage (heteronormative-kinship ties). Same-gender partners are not considered as legal surviving heirs.

– Opening a joint account as spouses: Since there is no legally recognized relationship between same-gender partners banks will not create joint accounts. However, there are other juggaads to do this (If you can’t create a family entity you can always create a business entity!)

– Acquiring a joint home loan: In most cases the Banks discourage such practices. However, there are no explicit law that prevents any person(s) from applying or availing of home loans jointly. There may be (difficult) ways to get this done.

– Adopting children as a same-gender couple. Joint custody of a child is not possible. Though adoption is possible as a single individual, there are many rules.

– Surrogacy as a couple or as a single individual – It is still not clear whether it is legal/illegal, as there is no law in effect to address this at the moment. So, technically, it is still possible, but it appears very difficult under the current governmental regime as surrogacy – both as a single individual or a same-gender couple – may not possible as per amendments proposed in the law in 2016, where homosexuals were specifically called out and excluded from access to surrogacy. However, the Surrogacy (Regulation) Bill, 2016, is yet to be passed by the Parliament.

III. What IS illegal / crime (you can be arrested for)

Section 377 of the Indian Penal Code criminalizes sex “against the order of nature”, even if it is consensual and private. This covers anal sex, oral sex, etc. The Criminal Law (Amendment) Act of 2013 included non-consensual oral and anal sex of the “heterosexual” variety in its definition of rape (Ramakrishnan, pers. comm.) Thus, same-gender acts alone, whether consensual or not, continue to be considered a crime under 377/

There needs to be evidence of such an act happening between two individuals for getting convicted under Section 377. Now, if someone with an intention of malice tried to indict someone under section 377, they would have to collect evidence of the sexual act. Unless the victim is caught having sex in public, the perpetrator would have to themselves violate one or more laws to gather such evidence – such as trespassing into the victim’s private space etc.

While convictions haven’t happened (unless in the case of non-consensual acts and child sexual abuse) – intimidation, blackmail, harassment, unlawful detention and arrests by the police do happen. Queer support organizations can help individuals in such situations. Refer to the next section on legal protections available.

IV. Legal protections available to queer individuals

– Protections under the NALSA judgement:

A two-judge bench of the Supreme Court of India, after hearing the petition filed by the National Legal Services Authority, passed a historic judgement on Transgender Rights on April 15, 2014. Detailed coverage of this ruling is available on Orinam here.

Quoting from Lawyer’s Collective, “The Supreme Court also firmly secured the right to equality and equal protection for transgender persons under Articles 14, 15 and 16 by prohibiting discrimination on the ground of gender identity. It has broadened the scope of the term ‘sex’ in Articles 15 and 16, which till recently meant biological sex of male and female, to include ‘psychological sex’ or ‘gender identity’. Significantly, the Court also declared that no one can be discriminated against on the ground of sexual orientation.”

– Section 388 and 389 of the IPC

Sec. 388. Extortion by threat of accusation of an offence punishable with death or imprisonment for life, etc.—Whoever commits extor­tion by putting any person in fear of an accusation against that person or any other, of having committed or attempted to commit any offence punishable with death, or with 1[imprisonment for life], or with imprisonment for a term which may extend to ten years or of having attempted to induce any other person to commit such offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if the offence be one punishable under section 377 of this Code, may be punished with 1[imprison­ment for life].

Sec. 389. Putting person in fear of accusation of offence, in order to commit extortion.—Whoever, in order to the committing of extor­tion, puts or attempts to put any person in fear of an accusa­tion, against that person or any other, of having committed, or attempted to commit an offence punishable with death or with 1[imprisonment for life], or with imprisonment for a term which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if the offence be punishable under section 377 of this Code, may be punished with 1[imprison­ment for life].

Sec. 388 thus covers instances in which in which extortion is actually committed after putting a person in fear of being accused of an offence such as Sec 377 that carries with it a large punishment. Sec. 389 covers situations in which actual extortion does not occur, but the extortioner puts a person in fear of being accused of an offence such as Sec 377 (Shukla pers. comm.)

Essentially Section 388 and 389 can be used against persons found guilty of extortion/harassment or attempts to do so, in relation to accusations that relate to Section 377. Punishment for extortion under Section 377 is explicitly called out in both sections. See Suraj Sanap’s detailed discussion on Sec 389 in Gaylaxy magazine here.

– Blackmail/Extortion/Defamation for outing a person

The regular laws for blackmail and extortion could typically be used against perpetrators claiming to ‘out’ queer individuals to their families, workplaces or in public media, if it could be argued that the intention was to create a fear of injury to the person’s reputation. One could also explore filing a defamation (Sec. 499) case for the same.

In case money or valuables are demanded – robbery or other forms of extortion under Sections 385-387, IPC can be helpful.

In case images are being used – Section 292-A – printing etc. of grossly indecent or scurrilous matter or matter intended for blackmail.

The Protection of Women from Domestic Violence Act, 2005, includes with in its ambit physical, mental, emotional and sexual violence perpetrated by family members. It can be potentially be invoked against parents of queer cis women (and, arguably, of trans masculine persons whose assigned gender at birth was female) if the parents are forcing their female-assigned adult offspring to marry a man. In cases where the individual is not out about being queer/trans, the fact of being forced to marry suffices for relevance, and the sexuality/gender identity of the individual need not be offered as a reason (Ramakrishnan, pers. comm.)

– Can workplaces fire individuals for their gender identity or sexual orientation?

While, we have labor laws that can generally protect against unfair dismissal of employees from service without valid reasoning, there is no specific protection in labor laws for individuals fired specifically for being queer.

However, the NALSA judgement does mandate equal opportunity and protection to transgender individuals in matters of employment. As Surabhi Shukla says, “Paras 58 and 59 of the NALSA judgment say that dismissal from employment on grounds of non-conformity to stereotypical generalization of binary genders are protected under Art. 15 and 16.”

In his summary of the NALSA judgement Danish Sheikh writes “The Court maintains at several points that discrimination on the basis of sexual orientation and gender identity is violative of fundamental rights. While it maintains at different points that its analysis is limited to the transgender community, statements like these have the potential to be used for pushing for non-discrimination and relationship recognition provisions for the LGBT community as a whole. Even within the category of gender identity as a ground for discrimination, the Court notes that the right against sex discrimination stands “to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders.” This reasoning can be used to contend against discriminatory workplace behaviour against men and women who don’t conform to gender stereotypes of being attracted to persons of the opposite sex, amongst other applications”

There are many progressive employers who are starting to create anti-discrimination policies and equal opportunity policies that specifically include sexual-orientation, gender identity and gender expression. Queer individuals must start reviewing such policies before joining organizations and understand if their workplace would truly protect them from discrimination on the grounds of being queer.

While there is still a long way to go before which queer individuals can claim to be equal citizens of this country, we should not take for granted the freedom we already have. We must not overlook our own privileges, compared to some of our brethren in many parts of the world.

It is said that Knowledge is Power. This knowledge of the law will help us stand up against our oppressors, or find our way out of tricky situations. Here is a wonderful short film that shows how an empowered and enlightened mother can stand up for her [possibly] queer child.

More queer power to all!

Credits:The authors would like to thank Surabhi Shukla and L. Ramakrishnan for their review and points referenced in this article. This article originated in a post by Ritesh Rajani in the FacebookTM group of the Bangalore-based queer collective Good As You.

Request: Lawyers, legal researchers and individuals experienced in crisis support are invited to add (caveats) to this compilation by leaving replies in the Comments section below.

On Wednesday, July 5, Bangalore Mirror published on its front page a news item titled “All hell breaks loose as two women wed in Koramangala”. The news item proceeded to give a one-sided account of the women’s relationship. It published salacious details about how their relationship started and went on to falsely claim that the women had gotten married. Further, the news item mentioned two quotes from lawyers saying that they were in an “unnatural union” and would be “punished”, and only one from a lawyer, who was misidentified, saying that same-sex relationships per se are not criminalized under Section 377 of the Indian Penal Code 1860.
At the same time, Public TV, a Kannada news channel, also obtained the contact details of one of the women, and called her to appear on their show. When she refused, stating that she wished to keep her life private, the reporter from Public TV told her to “wait and see”. Subsequently, Public TV uploaded perfunctorily blurred pictures of the women on their Facebook and Twitter feed, with captions insinuating that they were in an incestuous relationship. Public TV continues to harass one of the two women by constantly calling her and demanding that she appear on this show.

In case anyone is doubtful about the repercussions of such irresponsible reportage – one of the women was fired from her employment with immediate effect, within a few hours of the Public TV report.

As civil society organisations that work on the rights of LGBTIA+ individuals, we are horrified at the absolute lack of concern that media organisations demonstrate for the lives of people that they are reporting. We know that this is an incident that involves tremendous amounts of domestic violence and abuse. We are also aware that these women are living in constant fear for their lives. They have endured domestic violence, police harassment, and threats to their lives, and had achieved a semblance of peace for themselves. However, the actions of media houses have shattered this hard-earned respite, and now they are again forced to be on the run.

This is not the first time that media houses in Karnataka have chosen to report in this manner. TV9s reporting on Operation Anandi had devastating impact on the lives of the transgender women involved, some of whom continue to languish in jail. Media houses refuse to acknowledge actual human lives in their reportage, and absolve all responsibility for consequences. Every time a media house publishes a report like this; LGBTQIA+ persons are pushed further into the closet, and are made more vulnerable to violence.

Moreover, we understand that the police themselves have leaked much information to the media. It is disconcerting that in spite of closing all formal proceedings, the police continue to interfere in the lives of these women, and are harassing them using the media.

As a group of civil society organisations concerned for media reportage and its impact on the rights of LGBTQIA+ persons, we are calling for a press conference tomorrow, July 6, 2017, at 1 pm, Bangalore Press Club.

Public TV airs a special (link not yet up, but this smaller package will show you enough how terrible the reportage is: https://www.youtube.com/watch?v=rnGBVsHu3p0 | It was also their ‘breaking news’ in the) 10:30pm bulletin)

]]>http://orinam.net/irresponsible-police-action-and-media-reportage-bengaluru/feed/0http://orinam.net/irresponsible-police-action-and-media-reportage-bengaluru/Breaking the Binary: a LABIA research studyhttp://feedproxy.google.com/~r/orinam/~3/qlaYMDY8S0w/
http://orinam.net/breaking-the-binary-labia-study/#commentsTue, 20 Jun 2017 09:07:36 +0000http://orinam.net/?p=13226Full text of 'Breaking the Binary', research study by LABIA, is now available on Orinam.

]]>In 2009, LABIA began a research study that attempted to understand more about gender through the lives of queer persons assigned gender female at birth. We travelled across the country to several cities to meet LBT groups and individuals from both urban and rural areas for interviews and group discussions.

This study explored how gender plays out in public and private institutions and the multiple ways in which interlocking systems of heteronormativity, casteism, class and ableism are enmeshed within patriarchy to create exclusion, marginalisation, pathologisation and violence. It illustrates the multiplicity of ways in which people live gender and testifies that even if there are gender laws, in a just world there can be no gender outlaws. This study has also been a successful experiment in collective research and writing.

In 2013, we published the report titled Breaking The Binary: Understanding concerns and realities of queer persons assigned gender female at birth across a spectrum of lived gender identities. The key findings of the report were shared in public meetings in six cities around the country (ed: including Chennai). We also translated and published the report in Hindi in 2014. In July 2015, Zubaan published a book based on this study titled No Outlaws in the Gender Galaxy, which is now available in bookstores and online.

The English report has been up on our website for free download since its release. We would now like to make both the Hindi and English reports accessible to a wider audience and are extremely grateful to Orinam for putting them up. We can be reached at labiacollective@gmail.com and some of our earlier work is available at www.labiacollective.org

June 15, 2017: As Pride month hits its halfway mark, the chatter reaches a crescendo. The interwebs are flush with heated debates around corporate involvement in Pride walks, event announcements, rants by malcontents across the political and queer spectrums, and media articles vying with each other to achieve that winning combination of the topical and the sensational.

Meanwhile, a Tamil teenager, Nhaveen, breathes their last in the intensive care unit of the General Hospital in Penang, Malaysia, after being in a coma for over five days.

Cause of death: Gender

More specifically, hate directed at their apparently being a pondaan (local term, equivalent of sissy, pottai, ombodhu, chakka… you get the idea).

We have no idea if Nhaveen was gay, bi, straight, cis, trans or just a ‘soft‘ child unable to breathe the toxic fumes of teenage masculinity.

Their ‘true’ orientation and gender identity do not matter. Cease the endless speculation.

We do know that:

Nhaveen was eighteen years old.

Nhaveen and friend Previin were buying burgers at a stall in George Town last Saturday night, when they were accosted by two of their former classmates. They taunted Nhaveen, beat Nhaveen with helmets. Previin tried to stop them. But they fetched more of their friends, all between 16 and 20, to join in the aggression. Nhaveen was taken to a field near their home, penetrated anally by a blunt object, burned, and beaten up until they bled internally in their head and abdomen, and lapsed into a coma.

Sodomised, say the papers. An ugly word, used both for heinous assault and for consenting acts. Both treated as crimes, while only one should be.

Calls to attend an inter-faith vigil at the Arulmigu Sree Ganeshar Temple waterfall, Penang, were issued by the youth wing of the Malaysian Indian Congress. Tamilar Kural (Voice of Tamils) Penang, also called for a candlelight vigil.

Hundreds gathered for the candlelight vigils outside the hospital.

Nhaveen remained in a coma for five days and nights, six if you include that Saturday night.

Then Nhaveen died.

Nhaveen’s friend Previin escaped with injuries and is recovering from a surgery for a fractured bone under his right eye in the same hospital. He regrets confronting the bullies, as this escalated the aggression.

Nhaveen was to have left for Kuala Lumpur on Monday (June 12) to enroll in a music-composition course.